Roberts v. Canington — 2 N.Y. Super. Ct. 649

Majority

p. 649

William Roberts versus Henry Canington.

Headnote

The bond required by the 12th section of the Judiciary Act of 1789, upon the removal of a cause from a state court, to the Circuit Court of the U. S., is a joint and several bond, which should be offered at the time of the presenting of the petition.

Mr. D. Lord, in behalf of the defendant in this cause, read a petition for its removal into the Circuit Court of the United States, upon the ground that the defendant was a citizen of another state. As there had been considerable delay in the application, he read affidavits showing that it had been occasioned by the indisposition of the defendant’s counsel.

p. 650

Mr. Slosson, contra, for the plaintiff objected,

that the act of Congress, (the 12th section of the Judiciary Act of 1789,) had not been complied with, and that the defendant could not, therefore, transfer his cause into the Circuit Court at all That the act requires a-joint and several bond to be filed, and that in this case the bond furnished by the defendants, was only a joint bond executed by himself and his surety.

Mr. Lord insisted, that the spirit of the statute was complied with. That if a Court of Chancery could not in strictness allow a party to pursue the representatives of a joint obligor who dies, leaving his co-obligor bound, until all the remedies against the survivor had been exhausted, yet that a preference would be given to the creditor, and he would be first paid out of the assets of the deceased obligor. [He cited 3 Ves. 574, Burn v. Burn.]

The plaintiff is entitled, by the express- words of the act, to a joint and several bond from the defendant, who transfers a cause commenced against him. in a state court, into the Circuit Court of the United States. Even although a Court of Equity might interpose, and furnish a remedy in some form to-the plantiff if required, yet he is entitled to a perfect security,, and an adequate remedy at lato, against each of the obligors. He is not bound to take a mere equitable lien, and the court cannot accept it. The petition and motion in this case must therefore be denied.

Mr. Lord then offered to file the security required by the statute, and give a joint and several bond for the defendant.

It is too late. The bond must be filed at the time pointed out in the act.